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Ambriz v. Barr

United States District Court, N.D. California

October 28, 2019

WILLIAM P. BARR, et al., Respondents.



         Before the Court is Petitioner Daniel Marroquin Ambriz's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. The Court will grant the petition.

         I. BACKGROUND

         Marroquin Ambriz is 36 years old. ECF No. 1-1 at 18. He entered the United States from Mexico in 1996. Id. at 4, 8. He has been in removal proceedings since January 23, 2013. Id. at 92-93. Prior to that time, he had three criminal convictions: for driving under the influence in 2004, when he served two days in jail; for theft in 2008, for which he served another two days in jail; and for disorderly conduct for being intoxicated in a public place in 2013, for which he again served two days in jail. ECF No. 12-2 ¶¶ 4-6.

         The Department of Homeland Security initially released Marroquin Ambriz on his own recognizance but placed him in the Intensive Supervision Appearance Program (“ISAP”). ECF No. 12-4. As part of his participation in ISAP, he had to wear a GPS monitor. See ECF No. 12-2 ¶ 10.

         Marroquin Ambriz was arrested again on April 10, 2015, on misdemeanor drug charges. ECF No. 1-1 at 88. Police removed the GPS monitor, which alerted ISAP administrators. ECF No. 12-2 ¶ 10. Marroquin Ambriz was terminated from ISAP and voluntarily reported to the ISAP office on April 13, 2015. ECF No. 1-1 at 87. He was taken into custody by U.S. Immigration and Customs Enforcement (“ICE”) at that time. Id.

         On May 11, 2015, Marroquin Ambriz appeared before an immigration judge (“IJ”) for a bond hearing, and the IJ set a bond of $7, 000. ECF No. 12-6. He appeared for another bond hearing on November 18, 2015, and the IJ maintained the $7, 000 bond. ECF No. 12-7. He remained in custody because his family could not afford to pay the bond. ECF No. 1-1 at 5.

         On December 17, 2015, an IJ ordered Marroquin Ambriz's removal. ECF No. 12-8. Marroquin Ambriz appealed to the Board of Immigration Appeals (“BIA”), which granted the appeal on June 16, 2016. ECF No. 12-9. Marroquin Ambriz was unrepresented at the time of the IJ hearing, but his appeal was filed by counsel. Id. The BIA found that the IJ “erred in finding [Marroquin Ambriz] ineligible for cancellation of removal under section 240A(b) of the Act and voluntary departure due to his 2013 conviction” because the evidence in the record did not indicate that his 2013 conviction was for drug possession. Id. at 4. The BIA remanded to the IJ for further proceedings. Id. at 7.

         Marroquin Ambriz had another bond hearing in late July 2016 at which the $7, 000 bond was maintained. ECF No. 12-2 ¶ 16; ECF No. 1-1 at 5. This time, his family was able to pay the bond, and Marroquin Ambriz was released from custody on August 16, 2016 - sixteen months after first being detained. ECF No. 1-1 at 5.

         On December 23, 2016, Marroquin Ambriz was arrested after a traffic stop based on outstanding warrants from the 2015 drug charges. ECF No. 12-2 ¶ 18. His arrest did not trigger any involvement by ICE. He appears not to have been detained on these charges and was granted a pre-plea diversion on March 9, 2018. ECF No. 12-11 at 3, 11. Diversion was revoked on May 17, 2018, and the case remains pending.[1] Id.

         On March 31, 2018, Marroquin Ambriz “came to the attention of [ICE]” after he was arrested and taken into custody for taking a vehicle without owner's consent, possession of a stolen vehicle, and possession of a controlled substance. ECF No. 1-1 at 83. On May 21, 2018, he was convicted, following a plea of no contest, of taking a vehicle without owner's consent and sentenced to 112 days imprisonment and three years of probation. ECF No. 1-1 at 6; ECF No. 12-11 at 15. The remaining charges were dropped pursuant to the negotiated plea agreement. ECF No. 12-11 at 14. Marroquin Ambriz explains his conduct as follows:

I did not know that the car was stolen because my childhood friend sold me the car and told me that it was his car. He said someone tried to steal it so the ignition was broken and he did not want to fix the missing ignition. I bought the car for a few hundred dollars because the car was in bad condition. I should have known that the car was stolen, but I did not think that someone I knew from the neighborhood would deceive me and cheat me.

ECF No. 1-1 at 6. He received credit for time served - 56 days - and also received conduct credit of 56 days, meaning that he was released on the same day of his conviction. ECF No. 12-11 at 15. Marroquin Ambriz states that one of the conditions of his probation is to participate in an outpatient drug treatment program. ECF No. 1-1 at 6. He was taken into ICE custody upon his release from criminal custody on May 21, 2018. Id. at 88.

         On June 27, 2018, Marroquin Ambriz was denied bond at a hearing at which he was not represented by counsel. ECF No. 1-1 at 12. Other than Marroquin Ambriz's oral testimony, only two pieces of evidence were presented: “a letter of acceptance to a church rehabilitation program and transcripts from the high school he attended.” Id. at 13. He admitted to using methamphetamine but, as the government acknowledges, also testified that “the last time he had used drugs was six months prior to the hearing.” ECF No. 12 at 9 (citing recording of hearing, Ex. 1 to ECF No. 12-19). The IJ ordered that Marroquin Ambriz be detained without bond after finding that he was a danger to property and a flight risk. ECF No. 12-14. Marroquin Ambriz did not appeal this bond determination.

         On February 14, 2019, an IJ completed review of Marroquin Ambriz's removal proceedings following the BIA's June 16, 2016 remand and again ordered Marroquin Ambriz's removal. ECF No. 12-15. Marroquin Ambriz states that he first “went to court in September 2016 with my pro bono lawyer. But later she wrote me to tell me that she could not represent me because she was moving to another state.” ECF No. 1-1 at 6. His counsel's motion to withdraw was granted on June 7, 2018. Id. at 20. The record is silent as to proceedings between September 2016 and June 2018. The government has presented a declaration stating that the government requested a two-week continuance on June 8, 2018, for time to prepare. ECF No. 12-1 ¶ 3. After that, the hearing was continued several times, for a total of approximately three months, to allow Marroquin Ambriz time to seek representation. Id. ¶¶ 4, 6-8. His current pro bono counsel, the Office of the Alameda County Public Defender, began representing him in September 2018 and has continued representing him to date. ECF No. 1-1 at 12. At counsel's request for time to prepare, the hearing was continued another month, to October 10, 2018. ECF No. 12-1 ¶¶ 10-11. On October 10, 2018, the hearing was adjourned from the master calendar to a November 30, 2018 individual calendar hearing on the merits. Id. ¶ 12. The hearing was twice adjourned for immigration judge reassignment, and an IJ first heard testimony on December 13, 2018. Id. ¶¶ 12-15. The IJ held further hearings on January 16, 2019, and February 14, 2019. Id. ¶¶ 15-16. On February 14, 2019, the IJ denied Petitioner's application for relief. Id. ¶ 17.

         Marroquin Ambriz appealed the IJ's decision on February 26, 2019, and the BIA again granted the appeal and remanded the decision back to the IJ on July 23, 2019. Id. ¶ 18; ECF No. 1-1 at 31-32. The government did not file a brief on appeal. ECF No. 1-1 at 31. The BIA noted:

The respondent seeks asylum, withholding of removal, and protection under the Convention Against Torture based on a fear of cartels in Mexico, who he asserts will target him, with the aid of Mexican police, in order to retaliate against the respondent's brother, a former cartel member. The respondent testified in both 2015 and 2018/2019 in support of his applications for relief. The Immigration Judge found the respondent was not a credible witness, based in part on discrepancies between his 2015 testimony and his 2018/2019 testimony. Based in part on that adverse credibility determination, the Immigration Judge concluded that the respondent did not meet his burden of proof for either form of withholding of removal.

Id. (citations and footnote omitted). Marroquin Ambriz contended on appeal that the Spanish-to-English translation of his testimony from 2015 contained inaccuracies, and the BIA ordered the IJ to consider this evidence on remand and, “[i]f appropriate, ” to allow “both parties . . . the opportunity to present additional evidence and legal arguments.” Id. at 32. Marroquin Ambriz's removal proceedings remain pending before the IJ.

         On August 13, 2019, Marroquin Ambriz filed a motion to reconsider his release on bond pursuant to 8 C.F.R. § 1003.19(e), which provides that, “[a]fter an initial bond redetermination, an alien's request for a subsequent bond redetermination shall be made in writing and shall be considered only upon a showing that the alien's circumstances have changed materially since the prior bond redetermination.” He requested, based on “the prolonged nature of his detention, . . . a bond hearing in which the Government bears the burden of proof to establish by ‘clear and convincing evidence' that Mr. Marroquin Ambriz is a danger and flight risk.” ECF No. 1-1 at 18. His motion was based on his “plans to participate in an intensive outpatient drug treatment program upon release; positive activities while in detention, including completion of his high school equivalency and his role as Trustee in his pod; and hardship to his son and his parents as a result of his prolonged detention.” Id. It included as exhibits the BIA's July 23, 2019 remand decision; a licensed clinical social worker's evaluation of Marroquin Ambriz; a copy of Marroquin Ambriz's GED; a pediatrician's medical evaluation of Marroquin Ambriz's eleven-year-old son, who is a U.S. citizen; and eight letters of support from family members. Id. at 28-75. Marroquin Ambriz's parents share custody of his son with the child's mother. Id. ...

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